The burden of proof for breach of insurance policy conditions lies with the insurer, and failure to demonstrate such breach invalidates a pay and recover order.

JUDGMENT:

1. Heard Mr Saumen Vidyarthi, who appears along with Mr Rushabh Vidyarthi and Mr Vibhav Amonkar for the appellant. Mr James Lopes appears for respondent no.1-insurance company, and Mr Sudesh Usgaonkar appears for respondent no.3 to 5 (original claimants).

2. Both these appeals challenge the judgments and awards dated 16.02.2019 made in Claim Petitions No.119/2015 and No.120/2015 mainly to the extent they make a "pay and recovery order", thereby giving liberty to the insurance company to recover the awarded amounts from the appellant (owner of the offending vehicle).

3. The learned counsel agree that a common judgment and order can dispose of both the appeals because Claim Petitions No.119/2015 and No.120/2015 were instituted by the original claimants to claim compensation for the death of their parents in the vehicular accident which occurred on 30.04.2015. The Tribunal has directed the insurance company to compensate the claimants and, after that, recover the same from the appellant (owner). The Tribunal reasoned there was a fundamental breach of the terms and conditions of the insurance policy since the driver of the vehicle did not have an authentic license or had a fake license at the time of the accident.

4. Mr Vidyarthi, the learned counsel for the appellant, submits that the burden of proving a breach of the terms and conditions of the insurance policy is squarely upon the insurance company. He submits that the insurance company did not discharge such a burden. Therefore, the Tribunal erred in making a "pay and recover order".

5. Mr Vidyarthi submitted that no charges were framed under Sections 3 and 5 against the driver and the offending vehicle's owner. The insurance company issued no notice to the owner declining indemnification. The RTO officials were never examined regards the photocopy of the so-called fake license that was admitted in evidence. The police officials who were examined in this matter were also not questioned about the authenticity or otherwise of the license. Mr Vidyarthi submitted that these are significant factors that vitiate the "pay and recover order".

6. Mr Vidyarthi submits that there was no proper service on the appellant or the driver because there is nothing on record to show that steps to serve by the regular mode were adopted before the service was effected through publication. He submits that due to such unlawful service, the appellant and the driver were deprived of effective opportunity to contest the claim petitions.

7. Mr Vidyarthi relies on National Insurance Co. Ltd. Vs. Swaran Singh & Ors. – (2004) 3 SCC 297, Nirmala Kothari vs. United Insurance Co. Ltd. – (2020) 4 SCC 49, Rishi Pal Singh vs. National Insurance Co. Ltd. & Ors. – 2022 ACJ 1868, Neha Nilesh Arlekar vs. S. D. Reddy & Ors. – (2022) SCC OnLine Bom 409 and New India Assurance Co. Ltd. Vs. Nelufer Bi & Ors. – (2022) SCC OnLine Bom 3787 to support his above contentions. Based on all this, Mr Vidyarthi submits that the impugned awards to the extent they make a "pay and recover order" may be set aside.

8. Mr James Lopes, the learned counsel for the insurance company, defends the impugned "pay and recover order" based on the reasoning adopted by the Tribunal. First, he submitted that the driver's license was fake, established by producing the necessary communication from the RTO authorities. Second, he presents that there was no requirement to examine the RTO authorities because, despite good service, the appellant and driver did not appear and contest the issue of the fake license. Third, he submitted that there was no explanation why the appellant and the driver did not participate in the proceedings or why the driver did not enter the witness box and produce a valid license,